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DA says Boston cop slammed family member's head into driveway but judge dismisses most serious charge against him; DA appeals

A Boston Police officer who was already on probation for a domestic-violence incident and who was arrested yesterday on new domestic-violence charges had the more serious of the two charges dismissed before his arraignment after his attorney convinced a Dorchester Municipal Court judge that pavement is not considered a dangerous weapon in Massachusetts.

The Suffolk County District Attorney's office today filed a motion asking the judge, whom it did not name, to reconsider, because, in fact, Massachusetts does consider pavement a dangerous weapon if somebody is slamming somebody else's head into it.

Alexis Herrera-Brea, on the force since 2017, was arrested yesterday on charges of assault and battery with a dangerous weapon, a felony, and domestic assault and battery, a misdemeanor, for an incident sometime this year involving what police called "a non-intimate family member."

In its request to restore the felony charge, prosecutors wrote:

[T]here are sufficient facts to establish probable cause to believe that the defendant intended to inflict serious harm by slamming the alleged victim into the ground of a driveway with such force that he (the alleged victim) thought he might have a concussion.

Before his arraignment yesterday, Herrera-Brea's attorney, Benjamin Megrian, asked the judge to dismiss the more serious charge because of a 1996 court decision, also centered on a man pounding somebody's head into pavement, that pavement is not legally a dangerous weapon, essentially because pavement is just part of the surroundings, not a weapon that an attacker directly controls.

The DA's office says the judge refused to give a prosecutor more than a few minutes to research the case and then dismissed the charge at a hearing yesterday afternoon.

The problem is that while the Massachusetts Appeals Court did rule that pavement is not legally a dangerous weapon, the Supreme Judicial Court, which is the state's highest court, overturned that decision several months later and ruled that pavement can, in certain circumstances, including pounding somebody's head into it, be considered a dangerous weapon.

Megerian's hand-written request to dismiss the charge cited the Supreme Judicial Court ruling but used the logic of the appeals-court decision.

In a statement, DA Rachael Rollins said:

We have every intention of pursuing criminal charges in connection with this domestic violence allegation. In this case, the legal standard suggested by defense counsel had been overturned and we didn’t catch his error. Additionally, insufficient time was allowed by the Court to review the Motion to Dismiss and the legal precedent cited

In her statement, Rollins said that "Officer Herrara-Brea was on probation for an act of violence."

She did not provide details on either that case or why a police officer was allowed to remain on the force while on probation for such a charge. A list of Suffolk County law-enforcement officers facing misconduct allegations that is maintained by Rollins's office includes a listing for Herrera-Brea for assault and battery with a dangerous weapon on a family member on April 19, 2020.

Police said yesterday that Herrera-Brea was put on administrative leave yesterday.

Innocent, etc.

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Comments

If that’s how this shitty pig treated their own family just imagine how they treated everyone else

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Family disputes have a reputation for getting pretty out of hand in a way that would not as happen readily with strangers.

I mean, yeah, they're probably a violent person overall, but I'm not sure you can necessarily assume that they're more violent to strangers than to their own family. :-/

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You are right that people (including non-abusive people) will get into it more with people they are invested in. We care more what they think, we're more hurt when they hurt us, we know that we have a lot of power and could potentially say/do really hurtful things, etc. Something actually pretty mild from a loved one could be really hurtful to me, while a rando yelling an epithet at me for no real reason is just kind of annoying.

But we aren't comparing how someone behaves with their loved ones vs. total random strangers (road rage, etc.) We're discussing whether someone who allegedly has violent and abusive tendencies is more likely than other people to act violently when given a position of power in which one is legally tasked with using force on people and to largely be the arbiter of whether these people deserve this. It's hard to do this research with a control group, because policing is one of the professions that attracts a higher-than-average number of people who want power over people without having to demonstrate a ton of sustained effort at higher-level thinking tasks.

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that the notion that pavement can't be considered a dangerous weapon when someone is slamming your head into it is, ahem, dubious at best.

"Sure, my client pushed a butter knife through the alleged victim's eyeball into her brain, but it *is* a butter knife, which everyone agrees is very dull-edged and a commonplace, practical culinary tool never intended to be an offensive weapon, so no biggie."

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Yeah. Didn’t some judge just compare an AR-15 to a Swiss Army knife? Amazing what judges can reason when they know the conclusion they’re trying to back into.

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Police training in using force to subdue people is that making a strike to the head is like firing your weapon. You first go for the legs and arms.

In this case, I wonder if "slammed your head into the pavement" is how the prosecution framed what happened, while the defense says that there a struggle, someone tripped, fell, and knocked their head. In that narrative, the pavement is incidental, not a weapon.

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I'm not sure why there is a "with a dangerous weapon" provision in the law. If the battery is substantial, does it matter what physical item was used to create the outcome?

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There are felony types of assaults that don't include a dangerous weapon.

Smashing someones head into a sidewalk could be attempted murder, mayhem or quite simply felony assault and battery if the injuries were "substantial risk of death" or "disfigurement" (broken jaw).

The weapon part is strange though. A person kicking someone is almost always with a "weapon" because a shoe is considered a weapon. Compared to some MMA guy beating someone up would be simple assault (if the injuries are not substantial)

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"To wit, a shod foot"

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"shod foot" would make it into this discussion.

I know an attorney, middle-aged nerdy-looking white guy, who was working court-appointed criminal defense and started carrying around "burglarious tools" (screwdrivers and small pry bars and things) as well as not-actually-drug-paraphernalia in his messenger bag so as to refute claims that certain things were known to be carried by criminals.

"Defendant was noted to have a mirror, baggies, and a roll of $20 bills in his possession."

"Your honor, if I may, I wish to show that I have a mirror, baggies, and a roll of $20 bills in my bag. Do you also presume that I intend to commit crimes?"

I naturally asked him if he ever brought up having a "shod foot" in his possession, and, he, being an attorney, informed me that mere possession of a shod foot is not indicated in any statutes or case law to his knowledge.

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sounds much more intriguing than Open and Gross Lewdness. Most of what passes for dancing these days would have been Lewd and Lascivious in the not so distant past. Open and Gross is still pretty much what you might see or have seen on the T in any era. As Justice Stewart famously said, I shall not attempt to define it, but I know it when I see it.

Massachusetts law is stupid and doesn't have a crime of "aggravated assault" like most states. So they have to misuse the "dangerous weapon" law, even though in common speech a weapon is a thing you choose to have with you, not part of the surroundings or part of your body.

It's similar to how there's no explicit law about public urination, so they have to misuse the "open and gross lewdness" law. (Yeah, let's make someone a sex offender for life for creating a smelly condition that lasts until the next rainstorm!)

They need to fix this.

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And it can happen three ways:

(i) upon another and by such assault and battery causes serious bodily injury;

(ii) upon another who is pregnant at the time of such assault and battery, knowing or having reason to know that the person is pregnant; or

(iii) upon another who he knows has an outstanding temporary or permanent vacate, restraining or no contact order or judgment issued pursuant to section 18, section 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209A, or section 15 or 20 of chapter 209C, in effect against him at the time of such assault or assault and battery; shall be punished by imprisonment in the state prison for not more than 5 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $5,000, or by both such fine and imprisonment.

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They need to fix this.

Sir, this is a Wendy's. The Massachusetts State House is located at 24 Beacon St in Boston, MA 02133.

Alternatively: https://malegislature.gov/Search/FindMyLegislator

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the General Hooker entrance be used when addressing this matter?

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Yes, I would!

Is this officer male or female?

Edit: I do note that Adam has used male pronouns, but all the other sources I have seen about this story do not.

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Initial press accounts (including my first post) didn't reference a gender because Alexis is a gender-neutral name and the initial report on BPDNews didn't specify. But in its own press release on the case, the DA's office provided a gender:

Late yesterday afternoon, Officer Herrera-Brea was arrested and brought to the Dorchester Division of the Boston Municipal Court. His privately retained counsel produced a hand-written Motion to Dismiss citing one Supreme Judicial Court case. Unbeknownst to the Commonwealth at that time, the defense attorney misrepresented what that case stated.

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I have met this person in his previous job, prior to becoming a cop. He is male.

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Could anyone with experience please chime in as to whether this sort of motion practice is typical at an arraignment?

I know this is not federal court, but (1) hand-written motions, (2) no opportunity to review the motion and meaningfully oppose, and, most shockingly of all (3) no review by the judge of the law cited in the functionally ex parte motion?

I can't believe this is how our courts are operating. The judge's name should absolutely be front-and-center in reporting on this story.

(Edited for clarity)

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this really appears to be some Better Call Saul level, toilet stall written, legal document